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39 Cards in this Set
- Front
- Back
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how many statute are passed today by parliament ?
how was it in the midde age ? when did statute really started to become an important source of law ? |
20-30
fewer in the last 2 centuries |
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what happens when a statute and equity or common law opposed ?
case in which no court or other body can question the authoruty of parliament ? |
parliament wins
cheney V conn |
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what are the fonctions of parliament in 2006?
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legislative fonction (examinig and passingg bill, QIP is the supreme domestic law making body, the law passed by parliament represent the will of the people although in constitutionnal theory it is QIP)
deliberative fonction : scrutiny of executive policy and administration, it is a constitutionnal check; assures that the gov is constitutionnaly acountable and responsible with four mecanism : scrutiny of legslative proposal debates in parliament questions select comitees forum for debate : matters of public importance + westinster hole provider of taxation and finances (only houof commons scurtiny of european legislation recrutment of governmenent |
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does parliament rubber stamps the legislative proposals of the gov ?
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it can be argued in 2003/2004 33 public bills out of 38
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what is the orle of the queen today ?
what are her 7 constitutional role today ? is the monarch allowed in the common's |
mostly conventionnal
summoning P for general election preroging parliament at the end of p session dissolving parliament prior to general election queens speech granting ascent to a bill in order to become an act appointing hte minister who is drawn from parliament |
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parliamentary terms
vote of non confidence summoning in parliament parliamentary session prerogation |
period between two general election, 5 years since fic term parliament act 2011
under fix term parliament act if two third of common's vote of no confidence they will be general elections after a general elction under meeting of parliament act 1694, parliament must be summon one time per year at the end of parliamentary sessions, parliament is preroged, any bill who hasn't received the royal ascent will have to be reintroduced |
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priviledge of the Parliament
illustrztion with AV v united kingdom can they say anything they like ? |
art 9 of bill of right, free speech in p, legal immunity is absolute
a mp referred to a and familly and caleed them "neighbor from hell" echr said : It permetted debate, and insured a constitutional separation between the judiciary and legislature, as the judiciary couldn’t interfer with debate and speeches delivered in either House. no cuz parliament has its own court |
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house of lords act 1999
Life Peerages Act 1968 why is it good |
diminishes hereditary peers to 88. = therefore casts aside the thought that this chamber was conservative.
now life peer are the most subsequential foundation of the HOL , cuz can recrut experts + diminish inequality +dont hve to be replace. |
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how are the life peers appointed ?
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-when the pm takes office + on proposition of a chamber.
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European law can lead to new acts of Parliament which are passed in order to bring UK law in line with European law.
the Dublin Massacre in 1996 |
The Consumer Protection Act 1987
, the Firearms Amendment Act which banned private ownership of most handguns. |
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The drafting of a Bill isn't made in secret anymore since 2002
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There are two types of consultative docs that can be published by the gvt before the Bill is actually drafted :green paper and white paper
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two types of private bills
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local or personnal bill, private bill is long and costly, through a petition, then a reading in P.
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hybrid bill
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Neither a public bill nor a private bill, « a public bill which affects a particular private interest in a manner different from the private interests of other persons or bodies of the same class ».
the Channel Tunnel Act 1987 : was a hybrid bill because it sought to confere power to acquire specific land so were only affected people living on these specific lands. |
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Why choose to promote a private Bill
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The private bill procedures is complicated and expensive, sometimes local authorities prefer using delegating legislation. But delegated delegation, contrary to statute law, can be struck down by a court.
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how to cut the debate short ?
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the closing At least 100 members
the kangaroo chairman or speaker leaps over amendments the guillotine ministers may set a time limit for the discussion of a bill |
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could the queen still refused to grant royal ascent to an act
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yup she could do that in theory nerver arisen since Glorious Revolution of 1688
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does royal ascent automaticly means that the legislativep rocess is finished ?
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nope for exmaple HRA royal ascent in 1998 but came into force in 2000 when commencment orders ( the statutory instruments) were created
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under parliamnt act 19 ET 49 how long can the HOL obstruct the passing of a bill ?
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for 2 sessions, therofore 2 years
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commons have the executive privilege of ?
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government taxation and expenditure bills
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The Parliament Acts do not apply to certain kind of legislation :
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Local and private Bills
Bills introduced in the Lords (that the Lords can veto) Bills to prolong the life of Parliament (that the Lords can veto) |
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what is delegated legislation ?
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law made by some person or body other than Parliament, but with the authority of Parliament, which is usually laid down in a Parent Act, also known as an enabling Act. These Acts create the framework of the law and then delegates powers to other to make more detailed law in the area.
Disability Discrimination Act 1995 doesn't explain all, gave power to home secretary |
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three types of delegated legislation
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-orders in council and of council
-bylaws, made by local authorities to cover matters within their own area -statutory instruments most numerous type of delegated Legislation. There are approximatly 3OOO a year (regulated by the Statutory Instrument Act 1946) |
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Legislative Reform Orders
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Legislative and Regulatory Reform Act 2006,
ministers cana ctually change, amend primary legislation. But since the LRRA can be use to amend primary legislation they can only be used under very specific circumstances : can't be used to impose, abolish or vary any tax, can't be used to create a new criminal offence, or create a new penalty for an existing offence, can't amend or repeal any provision of the HRA] |
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Henry VIII clauses
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a provision in a Bill which enables primary legislation to be amended or repealed by subordinate legislation, with or without further Parliamentary scrutiny;
-The clauses were so named from the Statute of Proclamations 1539, which gave King Henry VIII power to legislate by proclamation. |
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the need of delegated legislation
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-parliament isn't expert enough
-you can gan time -makes it easier, you can react faster, flexible |
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three types of parliamentary control
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-by parliament but fairly limited House of Lords Delegated Powers Scrutiny Committee examines all Bills with delegating powers which allow SI to be made before they begin their passage through the House. In other word the committee examines all the enabling acts.
the Merits Committee examines if : 1) if the SI is politically or legally important or gives rise to issues of public policy likely to be of interest to the House 2) the SI may be inappropriate in view of the changed circumstances since the passage of the parent act. 3) the SI may inappropriately implement EU legislation 4) the SI may imperfectly achieve its objectives Scrutiny Committee : The main ground for referring a SI back to the houses of Parliament are : 1) the SI imposes tax or charges (and only an elected body has such a right), 2) the SI appears to have gone beyond the powers given under the enabling legislation 3) the SI makes some unusual or unexpected use of those powers 4) the SI is unclear or defective in s |
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two different procedure for a si come to life
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-affirmative The statutory instrument will not become law unless approved by Parliament and the need for an affirmative resolution is included in the enabling act.
-negative ): The relevant Statutory Instruments will be law unless rejected by Parliament within 40 days |
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. Control by the Courts distinction + def + exmaple
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-legislation delegated legislation is subject to control by the courts.
Delegated legislation can therefore be challenged by the courts on the ground that it is ultra vires. -Ultra Vires : Legislation going beyond the powers that Parliament granted under the enabling act. STRICTLAND V HAYES BOROUGH COUNCIL [1896] Facts : The Hayes borough Council passed a byelaw prohibiting the singing or reciting of any obscene song or ballad. Decision : The byelaw held to be ultra vires simply because it was too widely drawn and it covered acts done in private as well as those in private. |
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what are the main critisiscim adressed to delegated legislation ?
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does not provide effective scrutiny because ;
-1. The government has a majority in Parliament, and can force its legislation by relying on the whip system or party loyalty -2. The government has control over the parliamentary timetable, in agreement with the speaker and some MPs (who thay can easily convince). The government can thus curtail debate and vote motion quicker (by the motion of closure or the kangaroo). -way to complex therefore; reason for the importance of the committee stage |
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where does common law comes from ?
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-customary law, but mostly the rules worked out by the common law by the common law courts and the court of Equity. Cannon law used to play an minor role in the evolution of the common law
-inspired by ango-saxons legal systems 3. Wessex Law |
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3 courts before William
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shire, hundred's, and the franchise
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• Until the Act of Supremacy in 1534
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constant conflict between the King and the Church. William the Ist separated Lay courts and clerical courts, each having a definite jurisdiction. Bishop and clergy were to be tried in their own courts, according to cannon law.
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. The Assize of Clarendon (1166), and the Assize of Northampton (1176)
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created the jury and sheriff system.
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how was the judicial system held together ?
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Initially the whole system was held together by the doctrine of Stare decisis ;binding force of judicial precedent
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Today the term common law is used in four distinct sense :
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1. As opposed to local law
2. As opposed to Equity 3. As opposed to Statute law 4. As opposed to any foreign system of law |
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Ratio decidendi :
obiter dicta : |
The principle of law used by the judge to arrive at his decision together with his reasons for doing so.
“things said in passing”, which unlike the ratio decidendi they do not have binding force. The higher the court in the hierarchy the more important the obiter dicta. Obiter dicta can be persuasive in the sense that it is to be taken into account but it is not binding. |
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1990 Bennion identified a number of factors that may cause uncertainty when reading statutes 6
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- a word can have been left out
-the use of a broad term -ambiguous word or phrases may have been used on -purpose because the provision is politically contentious -the wording is inadequate -the events of the case before the court were not foreseen when the legislation was produced (ex: tweeting, internet). |
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what happens when a court has interpreted a section or a paragraph of a statute
can they overule the interpretation |
, that interpretation becomes part of case law just the same as any other decision and that interpretation is subject to the same rules of precedent.
But of course a higher court can decide that the interpretation is wrong or overrule it in a later case. |
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has Parliament given the courts some sources of guidance for interpretation
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-The interpretation Act 1978
-Statutes usually contain interpretation sections |
